S.M.A. v. R.E.W. Date:, 2015 BCPC 34

Citation: S.M.A. v. R.E.W. Date: 20150223 2015 BCPC 0034 . 12052 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.M.A. (Formerly Known as S.M.W.) APPLICANT AND: R.E.W. RESPONDENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Applicant: D. J. O'Donnell

Counsel for the Respondent: F. A. Nudel Place of Hearing: Chilliwack , B.C. Dates of Hearing: November 13, 14, 20, 21, 2014, February 6, 2015 Date of Judgment: February 23, 2015 Introduction [ 1 ] The Applicant S.M.A. (formerly known as S.M.W.) and the Respondent R.E.W. are the parents of the child who is the subject of this matter, M.E. A-W., who was born on (d.o.b.), 2007. [ 2 ] On January 27, 2012 the Applicant brought an application (under the Family Relations Act which was then in force) for an order for custody and guardianship of this child and two other children she had from a previous relationship.

She also sought an order for child support and for spousal support, and she also sought a restraining order against the Respondent. [ 3 ] The Respondent filed a Reply on March 7, 2012, in which he opposed all of the applications brought by the Applicant and in which he brought his own application for custody and guardianship of all three children, and for access to them in the alternative. [ 4 ] In an opening statement, counsel for the Applicant stated that the Applicant wanted a protection order under

section 184 of the Family Law Act. The Respondent is mainly seeking an order for unsupervised parenting time with the children.

Summary of Evidence [ 5 ] The Applicant and the Respondent met in 2006 and were married on August 17, 2007. The Applicant had two children from a previous relationship and the child M.E.A-W. was born on (d.o.b.). Both of the parties have issues which affect their mental health. The Applicant suffers from bi-polar disorder, while the Respondent has a learning disability which makes it very difficult for him to read. [ 6 ] The parties had some difficulties in recalling the early stages of their relationship.

The Applicant testified, in response to a question in chief, that her memory is somewhat unclear about the early days of the relationship. She said “honestly, my meds were being switched all the time so I can’t recall much.” The Applicant alleges that, early on in the relationship, the Respondent was prone to violence. She accuses him of hitting her son and also of taking his anger out on the family pets. The Respondent, who is a very soft- spoken man, denies this.

His recollection is that there was physical aggression the relationship, but that it existed on both of their parts. [ 7 ] The Respondent recalls that from the time when M.E.A-W. was born, the Ministry of Children and Families were concerned about the parenting abilities of both parents. He testified that he was very involved in raising the child and that the Applicant fed the baby, but that he changed her. He worked for a property management company at the time.

He testified that his stepchildren were good kids, but that they would not listen to him and the Applicant did not support him in his role as their father figure. [ 8 ] In 2010 M.E.A-W. was removed from the parties’ home after it was alleged that she had been touched inappropriately. The children were removed from the home and taken to live with K.A., their maternal grandmother. An investigation was conducted by the Ministry of Children and Families. In order to cooperate with the investigation, the Respondent agreed to submit to a polygraph examination conducted by an RCMP officer.

The Respondent denied any inappropriate conduct towards the children and it was the opinion of the polygraph examiner that the Respondent was being truthful. The Respondent recalls that the children were returned to the couple’s home the following day. [ 9 ] The Applicant alleges that the Respondent told her that he had found a way to cheat the polygraph test by putting a tack under his toe and an Ativan pill under his tongue. The Respondent denies this and it is doubtful that he said or did this.

There is nothing to suggest that such a tactic would have skewed the results and it is very unlikely that the Respondent would have learned of such a scheme or that it would have escaped the notice of an experienced polygraph operator if he had tried to do so. There are a number of things that call into question the Applicant’s credibility and this is one of them.

The Applicant also testified that at some point around this time she was experiencing emotional difficulties and ended up spending some time in the psychiatric ward, although she did not precisely state when this occurred. [ 10 ] The Respondent recalls that after the children were returned home the Applicant’s mother called him and apologized to him for what he had gone through while he was under suspicion. When the children returned home, they stayed in the same room.

The Applicant testified that she slept in the same room as the children, while the Respondent recalls that she slept with him at first, but later moved to the living room. It is clear that the allegations put a terrible strain on the relationship. The Applicant mistrusted the Respondent, while he felt unfairly treated because of the suspicion he was under. [ 11 ] K.A., the Applicant’s mother, testified that the Applicant’s older daughter had made disclosures to her alleging inappropriate conduct with the child on the part of the Respondent.

She testified that on at least two occasions she received telephone calls from the children that made her concerned about their welfare. She testified that on both of those occasions she went to the children’s home to insure that they were okay. She also testified that the child M.E.A-W. had asked if she could come and live with her.

Finally, after there were a number of things which raised her suspicions, she contacted the Ministry of Children and Families. [ 12 ] K.A. testified about her daughter’s bi-polar disorder and stated that “she’ll have good days and off days.” She also described the Applicant as “very volatile.” In cross-examination she acknowledged that the Ministry of Children and Families have been involved in M.E.A-W.’s life since the child was born because of the challenges that both of the parties have. When M.E.A-W. was born, K.A.

made herself available as a support for the parents. She said that when the Respondent was cleared in the investigation she was not happy about it, but chose not to make her own application for custody of the children. [ 13 ] The Applicant testified that the Respondent began to drink and use marijuana. The Respondent left the home on December 31, 2011. The Applicant remained in the home with the children at the time, but she had difficulties maintaining the home without the Respondent. There were problems with the plumbing and with mould in the house. The Applicant fell into arrears with payment of rent.

She was eventually evicted for non-payment of rent. To add to the acrimony between the parties, the Respondent, who was working for the landlord, was the person who served her with the eviction notice. [ 14 ] When the Respondent left the home, he expected to see the children regularly, but his communication with the Applicant was not particularly good and there was considerable mistrust of the Respondent on the part of the Applicant. For the first part of 2012, the Respondent was not permitted to see the children. This in turn led to the application now before the court.

On January 27, 2012 the Applicant brought her application (under the Family Relations Act which was then in force) for an order for custody and guardianship of M.E.A-W. and of the other children. She also sought an order for child support and for spousal support, and she also sought a restraining order against the Respondent.

The Respondent filed his Reply on March 7, 2012, in which he opposed all of the applications brought by the Applicant and in which he brought his own application for custody and guardianship of all the children, and for access to them in the alternative. [ 15 ] The Applicant was asked by her counsel why she needed a protection order. A long pause followed, following which the Applicant said that the children “need to feel safe”. She complained that M.E.A-W. will act out at the end of her visits with the Respondent. She says that the child acts inappropriately with animals and would sometimes wet the bed.

The Applicant testified that because she was concerned about how the child was acting, she would not take the child to visits with the Respondent. [ 16 ] The parties attempted to resolve the issues raised in their court pleadings by attending to a mediation, which resulted in an agreement dated April 26, 2012. In the agreement both parties acknowledged receiving independent legal advice. The agreement concerned all three children. In the agreement, the parties agreed that the Respondent would have access to the children from 1 p.m. to 4 p.m. on April 28, May 6 and May 12 of 2012.

The Respondent was also supposed to have access to the children at the same times every Sunday from May 20, 2012 until August 26, 2012. Additional access time on alternate Fridays from 6:00 p.m. to 9:00 p.m. was to occur during July and August, as well as at other times that the parties could agree upon. The Applicant was permitted to be present at the first three visits, and telephone access was also allowed twice per week between 7:00 p.m. and 7:30 p.m. [ 17 ] The first visit on April 28 th took place at the Chillibowl Bowling Lanes in Chilliwack.

This was the first time that the Respondent had seen the children since he left the family home. At the visit, the Respondent states that M.E.A-W. was very hesitant and the other two children were also very shy. He said that at first, M.E.A-W. didn’t know who he was. The Respondent testified that he thought the visit went well and that M.E.A-W. eventually opened up and was giggling. He told the child that he would see her at the next visit on the following Sunday. [ 18 ] But the Respondent did not see the child the next Sunday.

He went to the bowling lanes as agreed in the mediation, and waited from 12:45 p.m. until 4:00 p.m., but the Applicant did not bring the children to the visit. He had no prior warning that they would not be coming. The same thing occurred on the day of the visit scheduled for May 12 th . [ 19 ] The Applicant continued to refuse to honour the mediation agreement and the matter returned to this court. A Family Case Conference was held on January 14, 2013, but no consent orders were reached. Another Family Case Conference was held on March 1, 2013, before the Honourable Judge Young of this court.

At that time a consent order was reached in which the Respondent was to have scheduled parenting time with the child M.E.A-W. on March 2, 12 and 19, 2013. The Applicant was allowed to be present at the visits, but was to remain at a distance of 50 feet away. [ 20 ] The Respondent attended the visit of March 2 nd , which took place at a Tim Horton’s restaurant, and he testified that the visit went well. He and M.E.A-W. spent time together colouring and the visit lasted for a half an hour.

The Respondent hugged the child at the end of the visit and he looked forward to the next visit. [ 21 ] But once again, the Applicant did not bring the child to the next two scheduled visits. The Respondent testified that he attended at the visits early and waited for the entire time the visits were ordered to occur. He did not receive any prior warning that the Applicant would not be bringing the child to the visits. [ 22 ] The Applicant testified that she did not bring the child to the visits that Judge Young had ordered on the advice of her doctor.

She produced a patient record from the office of Doctor Bright which showed that the child was seen by the doctor on that day, but did not indicate any such recommendation by the doctor. [ 23 ] On May 29, 2013, the Honourable Judge Raven made a further order, after hearing some evidence. Judge Raven ordered that the Respondent was to have an unsupervised visit with the child once per week for one hour, commencing during the week of June 2, 2013.

If the parties were unable to agree where the visit was to take place, the visit was to occur at the Chilliwack Public Library. [ 24 ] The evidence of the parties differs on what took place following Judge Raven’s order. The Applicant testified that she brought the child to the library, but the Respondent did not show up. His evidence is that he was present, but she did not show up.

He testified that he attempted to communicate with the Applicant through Facebook to ask if she planned to bring the child to any of the visits, but this did not make the visits happen. [ 25 ] The Applicant testified that in September of 2013 she injured her foot and was unable to take the child to the visits. The Applicant missed a scheduled court date on September 12, 2013 and a summons was issued requiring the Applicant’s attendance in court on November 27 th . Service of the summons could not be effected and the Applicant did not attend court on November 27 th .

Judge Raven ordered that the Applicant could be served substitutionally. All the while, the Respondent was not having any visits with the child.

[ 26 ] Finally on December 5, 2013, the Applicant was present in court. At that time the Honourable Judge Raven made a further order that the Applicant was to transport the child to the Chilliwack Public Library each Saturday, where the Respondent was to have a visit with the child for an hour from noon until 1:00 p.m. Judge Raven also ordered that the Applicant was to attend on the family remand days from December 12, 2013 until February 27, 2014, to determine if she was complying with the order.

Judge Raven ordered that if the Applicant was in breach of the order, the Respondent was “at liberty to apply [for] an extraordinary remedy.” [ 27 ] The Applicant had a conversation with the child about what was taking place in court. While it cannot be objectively discerned what it was that the Applicant told the child, it had obviously upset the child. M.E.A-W.’s behaviour at school concerned her teachers enough on December 6, 2013, that the principal of the school contacted the Ministry of Children and Families.

Social Worker Kevin Longard met with the school principal and he also interviewed the child. (The social worker’s notes suggest that this meeting occurred on December 9 th , but this conflicts with information in RCMP records, which I find more likely to be correct as to the date of the meeting.) The notes taken by Mr. Longard of this meeting disclose the following information: SW Longard attended at the [child’s] school in Hope. Met first with [the school principal] who went to get little M.E.A-W.. SW interviewed M.E.A-W. in the principal’s office.

M.E.A-W. quickly appeared to be comfortable, and spoke softly, but openly. SW followed step-wise procedure and then moved from the inaugural questions to more direct interviewing. M.E.A-W. states she lives in the home with her mom, S.M.A., Grandma K.A., Uncle D. and two siblings. M.E.A-W. is the only child whose father is R.E.W.. SW asks where her dad is and if she has contact with him. M.E.A-W. she does not live with dad. He lives in Chilliwack and works there. M.E.A-W. stated that tomorrow she is going to see her dad, but “I hate that” because “he’s mean to me, He pinches me” on the arm. Nowhere else?

No. “He tries to make me choke.” SW asked M.E.A-W. to show what she means by this and she mimicked someone pulling on the collar of her shirt from behind, pulling the collar of her shirt tight against the front of her neck. M.E.A-W. could not express why her dad does these things. In answer to SW she states there is nothing else her dad does that is mean. SW then asked what was upsetting M.E.A-W. at school this morning. “Mom is going to jail if I don’t go to see dad.” M.E.A-W. has last seen dad in the summer she thinks. M.E.A-W. could not explain why she has only seen him once in a long time.

SW then asked if there was anything M.E.A-W. felt afraid to tell SW. She nodded her head in the affirmative. SW asked why she was afraid. M.E.A-W. answered “because he brings me to the bathroom and he has to go,” M.E.A-W. clarified “when he has to go bathroom.” SW asked M.E.A-W. to explain. She answered “he bees weird.” Again, SW asked what she means by this and she answered “he tries to make me look.” SW then asked if dad says anything.

M.E.A-W. answered “no.” With this information, SW Longard elected to discontinue the interview and take things gently back to a lighter conversation, not asking further questions, as the information could result in criminal charges.

Interview ended almost immediately without the child realizing why. [ 28 ] The child was interviewed by Constable Marianne Feigl of the Hope Detachment of the RCMP officer later on December 6, 2013. (The notes from the RCMP file state that this was the day on which the social worker had met with the child.) Constable Feigl conducted an interview with the child that was both audio and video recorded. A video recording of the interview was played at this trial. In the interview M.E.A-W. tells the officer that she does not know the difference between the truth and a lie.

M.E.A-W. told the officer that she does not want to go to her dad’s house because “he kicks me and pinches me.” She also said “if I don’t go to see my dad tomorrow, mom goes to jail.” In the interview M.E.A-W. also said “he’s mean to me”. She said that she had fallen down the stairs at her dad’s house and that “he made me fall down the stairs.” She also said “he tried to kill me with a knife. I was standing up, he was behind a couch, he popped out and I went to sit with mom.’ She told Constable Feigl that there wasn’t anything else he did to her that hurt her.

When the Constable asked if there was anything that M.E.A-W. was scared to tell her about, M.E.A-W. shook her head “no.” [ 29 ] According to the RCMP records, Constable Feigl concluded that if in fact there was any substance to what the child had said, and that “no recent criminal activity has occurred and the matter has been forwarded to MCFD for their action.

File concluded.” [ 30 ] The inconsistency of the stories that the child was telling, added to the fact that the Applicant had obviously spoken to the child following the appearance before Judge Raven, made it impossible for anyone to discern what part of the child’s statements, if any, were fact, what parts were fiction and the product of coaching from the Applicant. The Respondent denied that there was any substance to the child’s various tales and believes that the Applicant has coached the child to lie. The Respondent was asked about whether there had been any incident involving a knife.

He denied that any such thing had ever occurred and testified that he did not own any knives. Counsel for the Applicant sought to rebut this evidence by calling a witness named Dorey Pentz, who testified that five or six years ago, he spoke to the Respondent, who was expressing suicidal intentions. Mr. Pentz testified that at the time the Respondent had a knife with a six or seven inch blade. Mr. Pentz testified that he became concerned and called the police. He said that police attended and the Respondent willingly left with the police.

The Respondent denies that such an incident ever occurred and there is no independent record of such an event. [ 31 ] Social Worker Longard interviewed all three of the children again on December 17, 2013. The two older children did not say very much, which the social worker took to be their normal communication style. M.E.A-W. told the social worker about an incident that occurred when the family was living together in which the Respondent took her into a bedroom and locked the door. He would not allow the Applicant or anyone else into the bedroom.

M.E.A-W. did not suggest that anything inappropriate took place while she was alone with the Respondent. [ 32 ] On December 18, 2013 Social Worker Longard met with the Respondent. He asked the Respondent if he was prepared to wait until February when a Family Group Conference could be held. The Respondent was cooperative with the request.

[ 33 ] Social Worker Penny Lee Trites testified that following the report in December, the Ministry offered services to the Applicant. It was clear that the child seemed traumatized about the idea of a visit with the Respondent, but it was unclear what the actual source of the trauma was. As Ms.

Trites stated in an affidavit sworn on January 30, 2014, “the information M.E.A-W. is being given may be inaccurate, but the fear appears real.” [ 34 ] The parties appeared before Judge Raven on February 13, 2014, at which time Judge Raven ordered that the parties were to attend a Family Group Conference set up through the Ministry of Children and Families. A visit between the Respondent and M.E.A-W. was arranged and took place on February 15, 2014 at noon at the Chilliwack Public Library. The Applicant brought the child to the Library and the Respondent was waiting inside. Ms.

Trites and the Applicant sat about 20 feet away. Ms. Trites testified that the Respondent hugged the child and M.E.A-W. did not display any signs of fear of the Respondent. The parties were respectful to one another and the child seemed very comfortable with the Respondent. [ 35 ] Subsequent to this visit, the Applicant contacted the Ministry office in Hope and said that she did not wish to continue with the Respondent’s visits. Ms. Trites testified that she attempted to contact the Applicant to follow up on the matter.

She has left text messages, messages on Facebook, she went to the Applicant’s home once, and also attempted to contact her through her band office. The Applicant has never contacted her back. The Applicant testified that “Penny Trites told me in court that she was going to contact me but she never has.” She claims that it is Ms. Trites who has never followed up on contacting her. [ 36 ] Ms.

Trites testified that the Ministry of Children and Families has no child protection concerns about the Applicant or the Respondent at this time. [ 37 ] On February 27, 2014, the Honourable Judge Raven made a further order alternating the location of the Respondent’s weekly visits between Chilliwack, where the Respondent lives and Hope, where the Applicant lives. She also ordered that a report under

section 211 of the Family Law Act was to be prepared. Judge Raven also ordered that the Respondent was to contact Chilliwack Community Services to set up parenting classes for himself. He testified that he called this agency twice, but has not made arrangements to take these classes yet. [ 38 ] Most of the visits that followed Judge Raven’s order did take place, though some were missed due to the Respondent’s failure to get to Hope. For a time, the Ministry of Children and Families assisted with funds to facilitate visits, but the funding for this has run out. The parties and their counsel met on September 10, 2014 to work on facilitating a

schedule for visits. Counsel went above and beyond the call of duty to help the parties to make the visits happen. Their generosity was very commendable. While most of the visits that counsel arranged have taken place, the Applicant cancelled a Christmas visit because she says that the child was sick. She offered make- up days, but it was frustrating for the Respondent, who had gathered family members to see the child that day. [ 39 ] Jill Adamson, a Family Justice Councillor, interviewed the parties separately on October 20, 2014. The Applicant refused to permit Ms.

Adamson to interview the child without being present. The Applicant testified that she would not consent to Ms. Adamson interviewing the child alone because the child is a minor, but she later said “I changed my mind.” She later said, in cross-examination, “I don’t like anyone being alone with my children because of their past. I have trust issues, okay?” The Applicant’s refusal to let Ms. Adamson speak with the child privately meant that the Family Justice Councillor was unable to discern the child’s views in any meaningful way. Ms.

Adamson states in her report: This report is limited in score because of my inability to interview M.E.A-W. alone in order to hear her views, or observe her interactions with her dad without her mom’s presence and influence. During the visit at the Library, S.M.A. remained extremely close to M.E.A-W. and when questions were asked of M.E.A-W. by R.E.W., S.M.A. would tell her what to say.

When I visited S.M.A.’s house, she would not allow me to be alone with M.E.A-W. at any time, following us into M.E.A-W.’s bedroom when she was showing me where she sleeps. [ 40 ] The Applicant told the Family Justice Councillor that she did not feel that the Respondent should have any time with the child.

The Applicant is adamant in her view that, despite his being cleared in police and Ministry investigations, the Respondent has molested her children. [ 41 ] The evidence satisfies me that the Applicant deliberately sought to interfere with the Family Justice Counsellor’s effort to discern M.E.A-W.’s true feelings. Because it was important for M.E.A-W.’s true voice to be heard, it was arranged for the Family Justice Counsellor to interview the child, apart from the Applicant. Ms. Adamson met with M.E.A-W. on November 19, 2014.

It was apparent from the outset that the Applicant had once more attempted to influence the child because, even before the Family Justice Counsellor had asked the child any questions, M.E.A-W. said “I only have one thing to say. I don’t want to visit my dad anymore because it makes me feel sick to my stomach.’ [ 42 ] The Family Justice Counsellor skilfully steered the conversation away from this topic before returning to the subject of the Respondent. When Ms. Adamson returned to the subject of the Respondent, the child’s feelings towards him were not so hostile.

The Family Justice Counsellor reports as follows: M.E.A-W. said that what she loved the most about her dad was that he was fun.

She said “I don’t know why, but he’s fun.” M.E.A-W. could not say what fun things she did with her dad, saying “nothing, just because I’m shy and sometimes I don’t want to do anything.” She said if she did not see her dad, “I would keep on having phone calls with him.” She said when she talks with her dad on the phone she says “pretty much what mom wants.” M.E.A-W. stopped talking abruptly and then firmly said “I say what I want to say.” She then said it would make her feel sad if she did not see her dad. She also said she would feel sad if her mom was not there when she saw her dad.

M.E.A-W. said quite readily that her parents “got along good.” She said she remembered when her dad lived with them, but did not want to talk about what it was like. M.E.A-W. said she is very worried about hurting both her mom and her dad’s feelings when they read the report; but she is not worried about getting into trouble.

[ 43 ] The Family Justice Counsellor identified another impediment to a functional parental visit regime. She points out in her first report that both parents have health issues and limited finances. Neither of them owns a vehicle and they each rely on others for rides to parenting time visits. The Applicant supports herself and her three children on a very small disability payment. The Respondent’s means are also quite modest, though slightly better than those of the Applicant. [ 44 ] At the conclusion of submissions, I inquired of what the dates the upcoming visits were scheduled for.

It turned out that a visit was scheduled for the next day, but the Respondent surprised everyone including his counsel by announcing that he would not be attending at the visit. He had not given any prior warning of that, and it may not have been discovered but for my question about upcoming visits.

It is difficult to justify significantly more visits on the one hand, when the Respondent may be unable to attend the visits he is now receiving and when he is giving virtually no notice of his intention to cancel a visit. [ 45 ] I concur with the Family Justice Counsellor’s conclusion that the Applicant is unlikely to support or cooperate in the Respondent developing a relationship with M.E.A-W. This became clear during the Applicant’s cross-examination. For example, she was not willing to correct the children if they spoke disrespectfully or disparagingly about the Respondent.

She said “if that’s how they feel, that’s how they feel.” She was asked if she would comply with a court order that gave the Respondent unsupervised parenting time with M.E.A-W. A very long pause followed, following which, the Applicant said that she would not comply with any court order that involved the chance of M.E.A-W. being alone with the Respondent. Position of the Parties [ 46 ] Counsel for the Applicant argues that a case has been made for a protection order under

section 184 of the Family Law Act. Although the evidence does not supported any criminal conviction against the Respondent or any present child protection concerns under

section 13 of the Child Family and Community Service Act , counsel argues that these standards are not the same as those under

section 184. Counsel argues that although recent visits between the child and the Respondent have gone well, this should be attributable to the presence of the Applicant, which provides the child with a sense of security. Permitting the Respondent to have unsupervised visits with the child would not be in the best interests of the child because of the anxiety that this would cause the child. Counsel takes the position that the grounds for the making of a protection order have been met because of the risk to the child of possible physical and sexual abuse.

Counsel is not requesting an order of non-contact between the Respondent and the child. She only requests that such contact take place in the presence of the Applicant. [ 47 ] Counsel for the Applicant asks for an order naming the Applicant as sole guardian of the child pursuant to

section 51 of the Family Law Act and for an order giving the Applicant all of the parental responsibilities for the child as set out in

section 41 of the Act. She proposes that the order allow for telephone contact on three Saturdays each month at 12:00 noon, and that a visit take place every third Saturday at the Hope Public Library in the Applicant’s presence. [ 48 ] Counsel for the Respondent argues that there is nothing in the evidence which justifies departure from the presumption under

section 39 of the Family Law Act that both parties are the child’s guardians. He argues that the Respondent’s oversight as a guardian is called for because the child has missed a lot of school while in the Applicant’s care.

He also argues that limiting the Respondent’s role as guardian is not in the child’s best interest, given that the Applicant has shown a disregard for court orders and has stated that she may not follow the order which is made in these proceedings if she doesn’t like it. [ 49 ] Counsel for the Respondent notes that the independent evidence from the social workers shows that there are no current protection concerns.

The child enjoys her visits with the Respondent when there is no interference or negative influence from the Applicant and any suggestion of inappropriate behaviour on the part of the Respondent is likely the product of coaching by the Applicant. Further restriction of the Respondent’s relationship with the child is not in the child’s best interests because it robs her of her opportunity to know her father.

Counsel proposes that there be a gradual increase of the Respondent’s parenting time, commencing with a four hour visit each Saturday for the first 4-6 weeks, an eight hour visit for the next 4-6 weeks, and an overnight weekend visit for the following 4-6 weeks. [ 50 ] There is no need for a protection order, according to Counsel for the Respondent, who argues that any protection concerns emerge from the mind of the Applicant, a person who has obstructed the Family Justice Counsellor, refused to work with the Social Workers, coached the child about what to say before the Family Justice Counsellor commenced her interview, and refused to follow court orders.

Any fears the child expresses are most likely ones created by the Applicant, who has put false ideas into the child’s head about the Applicant being sent to jail. He argues that there has been a pattern of parental alienation on the part of the Applicant that must be stopped in order to salvage the child’s relationship with her father. Applicable Law 1. Best Interests of the Child [ 51 ]

Section 37 of the Family Law Act requires that when a court makes an order respecting guardianship, parenting arrangements or contact with a child, “the court must consider the best interests of the child only.” In determining what is in the best interests of a child, all of the child's needs and circumstances must be considered. Subsection (2) of

section 37 specifically mentions the following factors: (

a) the child's health and emotional well-being; (

b) the child's views, unless it would be inappropriate to consider them; (

c) the nature and strength of the relationships between the child and significant persons in the child's life; (

d) the history of the child's care; (

e) the child's need for stability, given the child's age and stage of development;

(

f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities; (

g) the impact of any family violence on the child's safety, security or well-being, whether the family violence is directed toward the child or another family member; (

h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child's needs; (

i) the appropriateness of an arrangement that would require the child's guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members; (

j) any civil or criminal proceeding relevant to the child's safety, security or well-being. [ 52 ]

Section 37 goes on to provide, in subsection (4) that “in making an order under this Part, a court may consider a person's conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.” 2. Protection Orders Under

Section 184 [ 53 ] Under the Family Law Act, a court can make an order for the protection of a family member. The prerequisite for the making of such an order is a determination by the court that family violence is likely to occur against an at-risk family member (defined as “a person whose safety and security is or is likely at risk from family violence carried out by a family member.”) [ 54 ] .Section 184 of the Family Law Act sets out the considerations that a court must make in deciding whether or not to make a protection order. This

section reads as follows: 184

(1) In determining whether to make an order under this Part, the court must consider at least the following risk factors: (

a) any history of family violence by the family member against whom the order is to be made; (

b) whether any family violence is repetitive or escalating; (

c) whether any psychological or emotional abuse constitutes, or is evidence of, a pattern of coercive and controlling behaviour directed at the at-risk family member; (

d) the current status of the relationship between the family member against whom the order is to be made and the at-risk family member, including any recent separation or intention to separate; (

e) any circumstance of the family member against whom the order is to be made that may increase the risk of family violence by that family member, including substance abuse, employment or financial problems, mental health problems associated with a risk of violence, access to weapons, or a history of violence; (

f) the at-risk family member's perception of risks to his or her own safety and security; (

g) any circumstance that may increase the at-risk family member's vulnerability, including pregnancy, age, family circumstances, health or economic dependence.

(2) If family members are seeking orders under this Part against each other, the court must consider whether the order should be made against one person only, taking into account (

a) the history of, and potential for, family violence, (

b) the extent of any injuries or harm suffered, and (

c) the respective vulnerability of the applicants.

(3) For the purposes of subsection (2), the person who initiates a particular incident of family violence is not necessarily the person against whom an order should be made.

(4) The court may make an order under this Part regardless of whether any of the following circumstances exist: (

a) an order for the protection of the at-risk family member has been made previously against the family member against whom an order is to be made, whether or not the family member complied with the order; (

b) the family member against whom the order is to be made is temporarily absent from the residence; (

c) the at-risk family member is temporarily residing in an emergency shelter or other safe place; (

d) criminal charges have been or may be laid against the family member against whom the order is to be made; (

e) the at-risk family member has a history of returning to the residence and of living with the family member against whom the order is

to be made after family violence has occurred; (

f) an order under

section 225 [orders restricting communications] has been made, respecting the at-risk family member, against the family member against whom the order is to be made. [ 55 ] An expansive definition of family violence is contemplated by the Family Law Act, and a court must make allowances for an at- risk family member’s perception of risks. However, as was observed in J.R.E. v. D.J.E., et. al., 2013 BCSC 2038 , cannot rest on subjective perceptions alone. There must be some objective evidence of family violence before concluding that family violence may occur in future. 3.

Objections to Hearsay Evidence [ 56 ] On a number of occasions, objections were made by counsel to various pieces of evidence because the original speaker or author of the statement was not present to swear to or affirm the truth of the contents of the original statement. For example, in the “Views of the Child Report”, the author gave one version of why the child was not interviewed at the Applicant’s home, which the Applicant disputed.

One of the social workers referred to information recorded in the Ministry files about a conversation between the Applicant and another social worker, and the Applicant once again disputed that conversation. Objection was made to the tendering of a report showing when the child had visited a doctor and this was objected to by the Respondent’s counsel.

Argument ensued about what use, if any could be made of the statements from the parties who were not called to give evidence. [ 57 ] Family law legislation in this province has always made allowances for the admission of evidence which might technically otherwise offend the rule against admitting hearsay evidence. This is because different considerations apply in family cases than may otherwise apply in other kinds of hearings.

In a criminal case the presumption of an accused’s innocence calls for a higher standard in order to prevent wrongful convictions, whereas in a family law matter, any “rights” that the parties may insist on must take a back seat in favour of the child’s best interests. Often these interests are better served by adopting less of a technical adherence to the formal hearsay rule. For example, section 68 (2) of the Child Family and Community Service Act expressly permits the acceptance of “any hearsay evidence that the court considers reliable”. That

section also allows a court to admit into evidence written documents that the court considers relevant. In the former legislation, the BC Family Relations Act ,

section 120 gave wide latitude to the court to hear application “in the manner the court may direct.” [ 58 ] The new legislation continues this approach, and allows the court to relax the rules of evidence when it is in a child’s best interests to do so.

Section 199 of the BC Family Law Act reads as follows: 199

(1) A court must ensure that a proceeding under this Act is conducted (

a) with as little delay and formality as possible, and (

b) in a manner that strives to i. minimize conflict between, and if appropriate, promote cooperation by, the parties, and ii. protect children and parties from family violence.

(2) If a child may be affected by a proceeding under this Act, a court must (

a) consider the impact of the proceeding on the child, and (

b) encourage the parties to focus on the best interests of the child, including minimizing the effect on the child of conflict between the parties. [ 59 ] The power granted to the court to limit formality includes the power to adopt a relaxed application of the hearsay rule in favour of getting to the heart of the issues which relate to what is in a child’s best interest. Surely if the court is given the power to dispense with formal application of the hearsay rule in a child protection matter where more is at stake for the parents, there is no reason why the same consideration shouldn’t apply in an FLA matter.

In both cases, the court can prevent parties from refusing to fully disclose circumstances which pertain to the child by refusing to allow them to hide behind technical evidentiary rules that may deny consideration of relevant and reliable information about what is in a child’s best interests. [ 60 ] A relaxed application of the hearsay rule and of other formalities, as considered in

section 199, also reflects the reality of contemporary family law proceedings. Many parties appear in court without the benefit of counsel. Many who have counsel have retained their lawyers under the legal aid system, which often does not provide sufficient resources for counsel to gather and present all of the evidence in the same way as might occur where the luxury of an abundance of resources exists. The scarce commodity of hearing time in Provincial Court often makes it wiser for counsel to abridge the amount of time a hearing would require in order that an earlier hearing date can be set and matters can be resolved earlier. This is what

section 199 is expecting. It would not make sense to insist that every collateral source of information be called to testify in family proceedings in order that there be strict adherence to the hearsay rule. There must be reasonable allowance made to accept evidence which might be technical hearsay if that evidence is relevant and if it can be considered as reliable. Analysis 1. Best Interests of the Child

[ 61 ] In assessing what is in this child's best interests, the first consideration is her health and emotional well-being. It is clear that the child has some apprehension and anxiety about spending time with her father. What is unclear is whether this is the product of genuine internal memories or if it is the product of parental alienation on the part of the Applicant. The evidence satisfies me that the Applicant is not above coaching the child on matters concerning her relationship with the Respondent. This comes through loud and clear through two incidents.

Firstly, the child’s apprehension about her mother “being put in jail” if the child did not go to her mother’s house is not something that the child could have invented on her own. Obviously the mother spoke to the child before she demonstrated the high level of anxiety at her school, which led to her interview with the police. Secondly, the statement that the child blurted out to the Family Justice Counsellor even before being asked any questions supports the reasonable inference that the Applicant had talked to the child about what to say.

As it turned out, the coached message was different from what the child ultimately told.

This, along with the Applicant’s refusal to let the child meet with the Family Justice Counsellor on the first occasion the two met, her expressed intention not to comply with any court order that she does not like, and her frustration of visits prior to Judge Raven’s order satisfies me that the Applicant is intentionally impeding the formation of any meaningful relationship between the Respondent and the Child. [ 62 ] I believe that the Applicant is refusing to permit the father-child relationship from developing because, rightly or wrongly, she believes that the Respondent poses a threat to the child.

The probability that she is correct is difficult discern because, from the manner in which she has conducted herself, the Applicant’s credibility is very suspect and the only support for her belief comes from her and those who support her. For example, her evidence that the Respondent cheated the polygraph test by using thumbtacks, and that somehow this would fool police is preposterous. Even things that the child says are suspect because of the Applicant’s practice of coaching the child. [ 63 ] All of the independent sources support the theory that the Respondent has done nothing wrong.

He has cooperated with those investigating any alleged wrongdoing on his part. He passed the polygraph test, and while this is not conclusive proof of anything, it lends some measure of support to his protestations of innocence. [ 64 ] There has been difficulty in discerning the child's views because of the initial obstruction of the Family Justice Counsellor by the Applicant and because of the coaching of the child that has taken place. I accept what the child said to the Family Justice Counsellor, namely that she would feel sad if she did not see the Respondent.

I also accept that the child would feel uncomfortable if the Applicant was not present when she spent with the Respondent. It seems more likely at this point however that her sense of unease comes from what the Applicant has told her and not from anything she recollects about the Respondent. [ 65 ] The child had a strong relationship with the Applicant and with the Applicant’s family.

Her relationship with the Respondent is not as strong because she has not been allowed to build this relationship, in part because of the various investigations, in part because the Respondent has not always been diligent about seeing the child when he has been able to do so, and in large part because the Applicant believes that the Respondent poses a danger to the child. [ 66 ] Since the parties have separated, the child has been in the care of the Applicant. With support from the Applicant’s family, the child has developed a kindly disposition and a sweet nature.

She has some difficulties in school, but overall, the Applicant has done well in raising the child, especially when one takes into account her financial and health challenges. The Applicant appears to be meeting the child’s need for stability, with the help of her family. The only real concern about the Applicant’s care of the child is the parental alienation which the Applicant is engaging in. [ 67 ] The parenting abilities of the parties might otherwise be more of a concern, were it not for the positive reports about how M.E.A-W. has turned out.

The health challenges and disabilities of the parties present difficulties, but the Applicant has demonstrated an ability to parent this child in the current home that she is in. Counsel for the Respondent was critical of the Applicant for moving with her children to Hope, and while she should not have done so without notice to the Respondent, it is difficult to see what other options she had after being evicted from her home in Chilliwack. She did not have a significant income and was not receiving any child support from the Respondent.

To require her to remain in Chilliwack under those circumstances would have placed a tremendous hardship on her and on the children. She made a choice that was in the best interests of her children to move to her mother’s home and it has worked out best for M.E.A-W., [ 68 ] The evidence satisfies me that the Respondent does not have the capability of parenting the child at this time. His health challenges prevent him from earning an income or from contributing financially to M.E.A-W.’s support.

He relies on others to get him to his visits with M.E.A-W., and while he has some support from family members, little evidence was presented about those persons. Most troubling was that, while his counsel is valiantly trying to get the Respondent more parenting time with the child, the Respondent has not always been able to exercise the time he has been given.

It was disheartening to hear that he would not be making the visit scheduled for the day following the end of the trial of this matter, and had not bothered to mention this to the Applicant until I happened to ask about when his next visit would be taking place. [ 69 ] A key issue is what the impact of any family violence might be on the child's safety, security or well-being. The difficulty is that the evidence is divergent about whether there ever was any family violence.

The Applicant has convinced herself that the Respondent will harm the child if he is left alone with her, while the Respondent is adamant that he has never harmed the child and never will. The independent evidence does not support the Applicant’s fears, and it appears that M.E.A-W. would not have any fear of the Respondent were it not for whatever the Applicant is telling her.

There have never been any criminal proceedings involving the parties, aside from the interview of the child, and any child protection proceedings have ended with the Ministry of Children and Families concluding that there are no current protection concerns relevant to the child's safety, and security or well-being. 2. Guardianship [ 70 ] Section 39 (1) of the Family Law Act makes each of these parties M.E.A-W.’s guardian. They were married prior to the child’s birth and lived together before and after the child’s birth. Guardianship can be terminated under section 51 (1) (

b) of the Act if it is in a child’s best interests. I am not satisfied that this is an appropriate case for doing so. This is not a case where the Respondent has intentionally absented himself from the child’s life. On the contrary, he has expressed a desire and a willingness to become more involved and active in M.E.A-W.’s life. The evidence does not support the Applicant’s assertion that the Respondent has harmed or is

likely to harm the child. No grounds have been shown for terminating Respondent’s guardianship and it is not proper to end the Respondent’s position as the child’s guardian simply because it is what the Applicant wants. Accordingly, the application to do so is dismissed. 3. Parenting Responsibilities [ 71 ] I find that the parties are unable to work collaboratively in M.E.A-W.’s best interests at this time. The Applicant has the idea fixed in her mind that the Respondent has harmed the child, and she is unlikely to trust him at any time in the near future.

The Respondent is offended about being wrongfully accused of harming his child and he too is unlikely to trust someone who appears to be turning his child against him. A sharing of parental responsibilities is unlikely to work in this situation. [ 72 ] Whatever criticisms may be levelled at the Applicant, she has managed to shoulder the burden of all of the responsibilities of raising her children since she and the Respondent have separated. She has done so with help from her mother, but with virtually no help from the Respondent. This is not intended as a criticism of him.

No doubt he would accept some of those responsibilities if he was entrusted with them by the Applicant. His inability to provide for his child financially stems from his health problems, not from any intentional neglect. [ 73 ] A change in the status quo would not be in M.E.A-W.’s best interests at this time. An order will be made giving the Applicant all of the parental responsibilities listed in

section 41 of the Family Law Act , except under subsection (j). That subsection will be shared so that both parties shall be entitled to request and receive information about the child’s education or health from third parties. 3. Parenting Time [ 74 ] M.E.A-W. is entitled to have a relationship with her father and that relationship should be unimpeded. The alienation of one parent from a child by another parent without just cause is unacceptable. Parents who insist on doing so risk an order changing the residence of the child. (Examples of where this has happened can be found in A.A. v.

S.N.A. 2007 BCCA 363 , and D.J.W.S. v. C.M.M. 2012 BCPC 156 .) In this case, the Respondent has not demonstrated an ability to care for the child at this time, and his counsel has not requested such an order yet. In the event that the child’s relationship with the Respondent continues to be sabotaged, sterner measures may be called for. [ 75 ] In the meantime, the Respondent is entitled to spend parenting time with the child. That time should be spent free from the influence of the Applicant, although some transition may be called for before this is achieved.

The amount of parenting time will not be as ambitious as the Respondent is requesting unless he demonstrates that he is able to be there for his child at all of the times that are scheduled and there are no last minute cancellations of visits on short notice. He must also demonstrate that he intends to follow Judge Raven’s order about accessing parenting training. [ 76 ] Similarly, the Applicant must not cancel visits unilaterally.

A cold or sniffle does not justify cancellation of court ordered parenting time. [ 77 ] In my view, the recommendations of the Family Justice Counsellor are reasonable ones for these parties, although the frequency of contact will be reduced until the Respondent has demonstrated that he will attend all of his visits, unless he has a valid reason for not doing so and has given reasonable notice to the Applicant. The times and conditions of the Respondent’s parenting time will be set out in the former order at the end of these reasons. 4. Protection Order [ 78 ] I have considered the factors set out in

section 184 of the Family Law Act and do not find that the grounds for making a protection order have been made out. There is no independent evidence of any family violence and the investigations of the Respondent’s conduct have not supported the concerns expressed by the Applicant. Despite having his parenting time frustrated by accusations and by the antics of the Applicant, the Respondent has shown remarkable composure. He has been very civil to the Applicant during the visits with the child and has not engaged in any abusive conduct that is often seen in cases of this nature.

He has cooperated with the social workers and police and has behaved calmly throughout these proceedings. The burden of proof for the making of a conduct order has not been met and the application for such an order is dismissed. 5. Generosity of Counsel [ 79 ] It came out in the evidence, through an exhibit setting out proposed visit dates, that counsel have been generously providing assistance to the parties to aid them in facilitating M.E.A-W.’s visits. The parties have limited means and both counsel have been helping the parties with the purchase of phone cards and with other help.

I mention this not with any intention of embarrassing them, but in recognition of their kindness in going above and beyond what is expected of them. In an age when the opinion that some members of the public have of lawyers is less than stellar, it should be recognized that the legal profession continues to be an honourable one and a helping profession, and that its members have a high level of integrity and compassion. The Fraser Valley bar is enriched for having such considerate and caring members in its number. Order [ 80 ] For the foregoing reasons, it is ordered as follows: 1.

The Applicant S.M.A. (formerly known as S.M.W.) and the Respondent R.E.W. are the guardians of the Child M.E.A-W., born on (d.o.b.) 2007, pursuant to section 39 (1) of the Family Law Act. 2. The Applicant shall have all of the parental responsibilities listed in the following subsections of

section 41 of the Family Law Act: (

a) making day-to-day decisions affecting the child and having day-to-day care, control and supervision of the child;

(

b) making decisions respecting where the child will reside; (

c) making decisions respecting with whom the child will live and associate; (

d) making decisions respecting the child's education and participation in extracurricular activities, including the nature, extent and location; (

e) making decisions respecting the child's cultural, linguistic, religious and spiritual upbringing and heritage, including, if the child is an aboriginal child, the child's aboriginal identity; (

f) subject to

section 17 of the Infants Act , giving, refusing or withdrawing consent to medical, dental and other health-related treatments for the child; (

g) applying for a passport, licence, permit, benefit, privilege or other thing for the child; (

h) giving, refusing or withdrawing consent for the child, if consent is required; (

i) receiving and responding to any notice that a parent or guardian is entitled or required by law to receive; (

j) subject to any applicable provincial legislation, i. starting, defending, compromising or settling any proceeding relating to the child, and ii. identifying, advancing and protecting the child's legal and financial interests; (

k) exercising any other responsibilities reasonably necessary to nurture the child's development. Provided that the Applicant and Respondent shall share the parental responsibility listed under subsection (j), such that both shall be entitled to request and receive information about the child’s education or health from third parties. 3. The Respondent’s parenting time shall occur as follows: (

a) For the months of March and April, 2015: on the second and fourth Saturday of the month from 1 p.m. to 4:00 p.m. It may take place at one of the following locations selected by the Respondent: the Hope Public Library, the Chilliwack Public Library, the Chillibowl Bowling Lane, the home of his A. R. or some other location agreed to by the Applicant. The Applicant may be present at the visits that take place in March, and for the first hour of the visits that take place in April. However for each of these visits, either the Applicant or the Respondent’s A. R. shall be present at the visits. (

b) For the months of May and June 2015: on the second and fourth Saturday from 1:00 p.m. to 6:00 p.m. This

schedule shall continue thereafter, until further order of the court. (

c) The Respondent may apply for increased parenting time after July 1, 2015, which may include overnight visits. Consideration of such application may include whether or not the Respondent has attended on all of his scheduled visits, and whether or not he has completed the counselling referred to in the order of the Honourable Judge Raven granted on February 27, 2014. (

d) The Respondent will be responsible for arranging transportation of himself to and from the visits, and of the child to and from the visits if, for those visits that the Applicant is allowed to attend, the Applicant chooses not to attend with the child to the visits. For those visits that the Applicant is entitled to be present at, she shall be responsible for getting herself and the child to the visit and if she fails to do so, the Respondent may pick up the child for the visit and return the child at the conclusion of the visit. (

e) In the event that a visit is cancelled by the Applicant without a valid reason (such as a serious illness or injury), the visit shall -be made up at a time and place selected by the Respondent within the next seven days, and the length of the visit shall increase by one hour. (

f) In the event that a visit is missed by the Respondent without a valid reason (such as a serious illness or injury), that visit shall be forfeit and his next visit shall be reduced by one hour. 4. The Application brought by the Applicant for a Protection Order under

section 183 of the Family Law Act is dismissed. Dated at the City of Abbotsford, in the Province of British Columbia, this 23 rd day of February, 2015. ______________________________________________ (The Honourable Judge K. D. Skilnick)